THE CASE of “N.S. v. Her Majesty the Queen, et al” heard in Ottawa on December 8 concerns a woman who has charged an uncle and cousin of “historical sexual assaults” (I take that to mean it happened long ago), and who in the course of hearings has requested permission to testify while wearing her niqab, or face veil. The Supreme Court of Canada is now reviewing this request and its judicial deliberations at lower levels of jurisprudence.
At the core of this review is the value of “demeanour evidence,” in this instance the evidence held to subsist in one’s facial expressions. The plaintiff in this case, N.S., is required by religious stricture to wear the niqab among all who are not immediate relatives, which includes the defendant M–d.S., her cousin. (I mention this because M–d.S — a publication ban protects the identities — is one of the parties asking that the niqab be removed, the Crown being the other.) The appellate court objected to this practice of veiling, and during the preliminary inquiry a judge ordered that the defendant remove her veil. A writ for “certiorari quashing” was granted, a rather cumbersome mouthful of Latin which means “hold on a second, mate, let’s have a look at that judgement.” At the same time, the Court of Appeal stopped short of affirming an “application of mandamus” which would have upheld N.S.’s right to wear her veil during testimony. This ambiguous state of affairs brings us to the present discussion.
You’ll be pleased to know that from here on I’ll use plain English. The reason this case fascinates me is best conveyed in the following quotation from a Teresa Smith Postmedia article published earlier today:
[Defence lawyer, David] Butt said he is disheartened by what he calls the “intolerant, racist and ignorant” comments after most online news stories he reads about this subject. “That’s exactly when you need courts to step in and protect minority rights when there’s a popular sentiment against them,” he said. The Supreme Court judges were very engaged with the arguments, said Butt. “They were asking tough questions and I like to see that they’re really wrestling with these important issues.”
Having this week dived into a sea of online commentary cheering the Gatineau values guide, I’d been tempted only days ago to repost a longish piece I wrote in the 1990s on Bertrand Russell, the chief point of which was the virtue and necessity of learning to have one’s sentiments offended. I’m not one to abjure the no-holds-barred atmosphere of a verbal street fight, and I think I can take at least as well as I can give it — but I think it beneath dignity to have a “debate” over the “smelly cooking of those people.” If that’s the sort of nutrient-starved ground into which the anti-Trudeau, anti-multiculturalism, pro-Euro-heritage folks wish to plant their principles, then I too am disheartened. I happen to think there are things worth fighting over, and that the aroma of palak daal is not one of them.
We are told that the Supreme Court judges are “asking tough questions … and really wrestling with these important issues.” That’s a gratifying prospect — and precisely the approach we need where so many important and competing interests, among which are the rights of women and the rights of defendants to a fair trial, are involved. Above all, the trial takes into consideration the larger matter of minority rights, against which there has been a considerable backlash in recent years. The protection of minority rights is a cause under way of repudiation by the anti-multiculturalists who assert things have gone too far. Canada is now a nation of latent contradictions and conflicts and competing interests, the balancing of which is a matter of urgent necessity. Perhaps never before in this country have fundamental concepts such as fairness and tolerance and human rights attracted the intensity of emotional charge they at present do.
Since 11 September 2001, and in large measure due to it, western democracies are undergoing a process of internal polarization not seen since the 1930s. At that time, the combination of economic stresses and mass migrations led to a rise of nationalism and the proliferation of tribal ideologies. The world was divided along ideological and racial and class lines for the purpose of total and final war. This business of total war necessitated a clear and unequivocal demarcation of right and wrong, and of friend and foe. This period of final solutions was therefore also a time when propaganda achieved the status of art-form, and when the identification both of existential threat and of scapegoats became matters of national duty. All of this acquiescence to pseudo theory and simplification is the opposite of asking tough questions and wrestling with important issues.
The real context of this trial is the current civil war within Islam, which has become a global civil war. Citizens of the world have an opportunity and an obligation to choose a side, for the outcome of this division concerns us all. It is not however a simple division of “races” or cultures or even nations into a generalized Us and Them. The complexity of our historical juncture may dictate that, for example, one chooses to defend the right of a Muslim woman to wear the niqab while at the same time choosing to take a stand against the clerical fascists who insist upon such things. Or, to cite another common example, one may defend multiculturalism and an open door policy while taking a firm stand against the importation of Sharia. Here again I defer to the Bertrand Russells of our world, those who take a rigorous and unromantic view of human beings and who try to untangle the complexities in the clear and impartial light of fact and reason.
This essay constitutes my roundabout way of saying that I applaud, and endeavour to side myself with, the acquired habit of asking tough questions and wrestling with important issues. I assert this as someone who has had quite a good amount of sharp and unequivocal things to say against jihadists and their sickening anti-war, “progressive” left apologists. As a practical matter this has meant that I’ve managed to earn for myself enemies all across the political spectrum, and so be it. My “side” is committed to complexity and thought and dialectic and the necessary making of subtle distinctions in a world where propaganda and scapegoating appear to be once again on the rise.